Proffitt v. United States

• Decision Date: 05 April 1920
• Docket Number: 3417.
• Parties: PROFFITT v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

264 F. 299

PROFFITT v. UNITED STATES.

No. 3417.

United States Court of Appeals, Ninth Circuit.

April 5, 1920

Frank E. Dominguez, Milton M. Cohen, Will H. Willis, and William Thomas Helms, all of Los Angeles, Cal., for plaintiff in error.

Robert O'Connor, U.S. Atty., and Gordon Lawson, Asst. U.S Atty., both of Los Angeles, Cal.

The indictment in this case contains four counts. The first charges a conspiracy to commit an offense against the United States in the following language: That the defendants 'did knowingly, willfully, unlawfully, corruptly fraudulently, and feloniously conspire, combine, confederate and agree together, and with divers other persons whose names are to the grand jurors unknown, to commit an offense against the United States, to wit, the offense of receiving, concealing, buying, selling and facilitating the transportation, concealment and sale of opium prepared for smoking, which said opium prepared for smoking then and there had been imported into the United States from a foreign country, said foreign country and the place of importation are to the grand jurors unknown, after the 1st of April, 1909, contrary to law, the said defendants then and there knowing that the said opium prepared for smoking then and there had been so imported into the United States contrary to law. ' The indictment then sets forth four several overt acts to effect the object of the conspiracy.

The second count charges a direct offense against the United States, as follows: That the defendants 'did knowingly, willfully, unlawfully, fraudulently, and feloniously receive, conceal, and facilitate the transportation and concealment of opium prepared for smoking; that is to say, the said defendants did, at the time and place aforesaid, take the said opium prepared for smoking in an automobile to a certain point in the said city of Los Angeles, said point is to the grand jurors unknown, and then and there did secrete and hide the said opium prepared for smoking, the quantity of said opium prepared for smoking so received and concealed, and the transportation and concealment of which was so facilitated, was contained then and there in about fifty (50) cans of the sizes commonly called 5-tael and 4 1/8-tael, the exact quantity of the said opium prepared for smoking, and the exact number of said cans is to the grand jurors unknown, which said opium prepared for smoking then and there had been imported into the United States from a foreign country, the said foreign country and the place of importation are to the grand jurors unknown, after the 1st day of April, 1909, contrary to law, the said defendants then and there knowing that the said opium prepared for smoking then and there had been so imported into the United States contrary to law.'

The third and fourth counts are similar to the second, but relate to different transactions. A demurrer to the indictment was overruled, and a trial was had before a jury.

On the trial of the case one Holmes was called as a witness on behalf of the defendants, and testified that the defendant Proffitt was at his garage in Los Angeles arranging for repairs on his car at the time Proffitt was located by the government witnesses at Pasadena, several miles distant. The witness further testified that Proffitt asked to borrow a car from the witness while his own car was undergoing repairs. On cross-examination the witness was asked if this was the Baptieste car and answered in the affirmative. The witness was then asked, 'Who is Baptieste?' and the question was objected to as not cross-examination, incompetent, and immaterial. On assurance of the assistant United States attorney that the materiality would appear later, the court overruled the objection and no exception was taken. The witness was then asked the following question: 'Now don't you know that Baptieste was picked up by Proffitt and Hill when he had opium in his possession, that he was taken down to the police station, and that his car was taken away from him and put in your...